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International investment arbitration in Laos: Large issues for a small state 老挝的国际投资仲裁:小国的大问题
The journal of world investment and trade Pub Date : 2017-12-07 DOI: 10.1163/22119000-12340069
Romesh Weeramantry, Mahdev Mohan
{"title":"International investment arbitration in Laos: Large issues for a small state","authors":"Romesh Weeramantry, Mahdev Mohan","doi":"10.1163/22119000-12340069","DOIUrl":"https://doi.org/10.1163/22119000-12340069","url":null,"abstract":"Laos is no stranger to international investment arbitration. Despite its status as one of Southeast Asia’s least developed countries, it has had an Investment Law for more than two decades and is also a party to several bilateral and Association of South East Asian Nations (ASEAN)-related investment agreements. More recently, two investment treaty claims have been made against it, one of which has given rise to an award challenge that went all the way to Singapore’s highest court. This article will examine the history, evolution and current iteration of Laos’ relationship with international investment law and focus on the two investment treaty claims instituted against Laos. The article concludes with an appraisal of Laos’ need to maintain its investment treaty programme, despite the difficulties that may have arisen as a result of it being a respondent in investment treaty arbitrations.","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"64 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126648398","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
International Investment Law and Practice in the Kingdom of Cambodia: An Evolving ‘Rule Taker’? 柬埔寨王国的国际投资法与实践:一个不断演变的“规则接受者”?
The journal of world investment and trade Pub Date : 2017-12-07 DOI: 10.1163/22119000-12340067
Romesh Weeramantry
{"title":"International Investment Law and Practice in the Kingdom of Cambodia: An Evolving ‘Rule Taker’?","authors":"Romesh Weeramantry","doi":"10.1163/22119000-12340067","DOIUrl":"https://doi.org/10.1163/22119000-12340067","url":null,"abstract":"Cambodia has undertaken several initiatives to attract foreign direct investment (FDI), which has been growing rapidly in recent years, particularly through participating in Association of South East Asian Nations (ASEAN) investment agreements and free trade agreements (FTAs). This article first outlines Cambodia’s arbitration law and practice, its Law on Investment, the court system, problems relating to corruption, and foreign direct investment (FDI) patterns. It then surveys trends in Cambodia’s comparatively belated signing of investment treaties, and their main contents (including recent treaties with India and Hungary, adopting very different models). The article then discusses the only investment arbitration instituted against Cambodia, which was successfully defended, followed by a comment on the future prospects for Cambodia’s investment treaty program.","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122558355","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 2
Foreign Direct Investment in the Philippines and the Pitfalls of Economic Nationalism 菲律宾的外国直接投资和经济民族主义的陷阱
The journal of world investment and trade Pub Date : 2017-12-07 DOI: 10.1163/22119000-12340081
Anselmo Reyes
{"title":"Foreign Direct Investment in the Philippines and the Pitfalls of Economic Nationalism","authors":"Anselmo Reyes","doi":"10.1163/22119000-12340081","DOIUrl":"https://doi.org/10.1163/22119000-12340081","url":null,"abstract":"Recent trends in Philippine growth and foreign direct investment (FDI) reveal only modest achievements, when compared with other ASEAN countries, and little impact on income inequality. These outcomes are attributed to the policy of economic nationalism in the Philippines’ constitutional and legislative framework for FDI, whereby government reserves ‘strategic’ fields to Filipinos, while foreigners face hurdles in making investments. The account doubts whether foreign nationals can safeguard investments by recourse to Philippine BITs as those reinforce economic nationalism by requiring FDI to comply with Philippine law. Poulsen’s observation that developing countries entered into bilateral investment treaties (BITs) oblivious of the risks does not seem applicable to the Philippines, which has deftly used BITs to advance economic nationalism. Litigation before domestic courts is not an alternative for protecting investor rights, but international commercial arbitration may become so in due course. The account concludes with proposals for future policy.","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"28 51","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"113954982","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 1
International Investment Arbitration in Myanmar: Bounded Rationality, But Not as We Know It 缅甸的国际投资仲裁:有限理性，但并非我们所知
The journal of world investment and trade Pub Date : 2017-12-06 DOI: 10.1163/22119000-12340068
J. Bonnitcha
{"title":"International Investment Arbitration in Myanmar: Bounded Rationality, But Not as We Know It","authors":"J. Bonnitcha","doi":"10.1163/22119000-12340068","DOIUrl":"https://doi.org/10.1163/22119000-12340068","url":null,"abstract":"In 2011, following almost fifty years of one-party military rule, Myanmar began a process of transition toward democracy. Alongside this process, the Government of Myanmar is pursuing a variety of reforms in the hope of attracting new foreign investment. This article examines elements of the national and international legal environment governing foreign investment in Myanmar. The focus is on Myanmar’s current approach to investment treaties and Myanmar’s experience of investor-state arbitration under such treaties to date, although the article also reviews Myanmar’s national laws that are relevant to international investment arbitration, notably its laws on foreign investment and on arbitration. The article highlights Myanmar’s position to date as a ‘rule-taker’ in the investment treaty regime. It draws attention to important differences between Myanmar’s experience with investment treaties and the experiences of other developing countries, as well as possible points of similarity.","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-12-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131333928","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 1
The Role of Arbitration in Shipping Law, edited by Miriam Goldby and Loukas Mistelis 《仲裁在航运法中的作用》，米里亚姆·戈德比和劳卡斯·米斯特利斯主编
The journal of world investment and trade Pub Date : 2017-12-06 DOI: 10.1163/22119000-12340084
Peter Macdonald Eggers
{"title":"The Role of Arbitration in Shipping Law, edited by Miriam Goldby and Loukas Mistelis","authors":"Peter Macdonald Eggers","doi":"10.1163/22119000-12340084","DOIUrl":"https://doi.org/10.1163/22119000-12340084","url":null,"abstract":"","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"129 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-12-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134204023","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 1
Malaysia and Investor-State Dispute Settlement: Learning From Experience 马来西亚与投资者-国家争端解决:经验教训
The journal of world investment and trade Pub Date : 2017-12-06 DOI: 10.1163/22119000-12340065
Sufian Jusoh, Muhammad Faliq Abd Razak, Mohamad Azim Mazlan
{"title":"Malaysia and Investor-State Dispute Settlement: Learning From Experience","authors":"Sufian Jusoh, Muhammad Faliq Abd Razak, Mohamad Azim Mazlan","doi":"10.1163/22119000-12340065","DOIUrl":"https://doi.org/10.1163/22119000-12340065","url":null,"abstract":"Malaysia is an important destination for foreign direct investment and has signed more than 70 investment guarantee agreements. Most allow investor-state dispute settlement (ISDS) and Malaysia has been subject to three claims, including two fully argued cases: Philippe Gruslin and Malaysian Historical Salvor. Yet Malaysian companies have also utilised ISDS provisions: in MTD Equity Bhd v Chile, Telekom Malaysia v Ghana, and Ekran Berhad v China (the first-ever ISDS claim against China). These cases provide lessons for Malaysia in becoming better prepared to negotiate newer generations of investment treaties, and to defend further potential cases. Malaysia has not reacted negatively to investment treaties despite the cases filed against the country. In fact, in light of its evolving interests Malaysia has become more of a rule-maker in international investment law rather than a rule-taker. Malaysia thereby continues to liberalise its investment regime and provide better transparency – the best defence against claims.","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-12-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116185922","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 2
The Termination of Indonesia’s BITs: Changing the Bathwater, But Keeping the Baby? 印尼双边投资协议的终止:换洗澡水，保留婴儿?
The journal of world investment and trade Pub Date : 2017-12-06 DOI: 10.1163/22119000-12340063
A. Crockett
{"title":"The Termination of Indonesia’s BITs: Changing the Bathwater, But Keeping the Baby?","authors":"A. Crockett","doi":"10.1163/22119000-12340063","DOIUrl":"https://doi.org/10.1163/22119000-12340063","url":null,"abstract":"In 2014, Indonesia began progressively to terminate the 67 bilateral investment treaties (BITs) it has signed since the late 1960s. It does not appear to be Indonesia’s intention, however, to completely abandon investor-State dispute settlement (ISDS) and it is likely that ISDS provisions will be included in a number of new regional treaties being negotiated by Indonesia, including the Regional Comprehensive Economic Partnership. Contrary to Poulsen’s theory of ‘bounded rationality’ it is suggested that Indonesia was not completely ignorant of the implications when it negotiated its first BITs in the 1960s, nor did it merely accept templates foisted upon it by the capital exporting countries of the West. Recent developments appear to confirm that, notwithstanding its decision to terminate its BITs, Indonesia still considers it important that foreign investors are assured of some minimum standards of protection, governed by international law and backed by access to neutral international dispute resolution.","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-12-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133911289","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 4
Singapore and Its Free Trade Agreement with the European Union: Rationality ‘Unbound’? 新加坡及其与欧盟的自由贸易协定:理性“不受约束”?
The journal of world investment and trade Pub Date : 2017-12-06 DOI: 10.1163/22119000-12340064
Mahdev Mohan
{"title":"Singapore and Its Free Trade Agreement with the European Union: Rationality ‘Unbound’?","authors":"Mahdev Mohan","doi":"10.1163/22119000-12340064","DOIUrl":"https://doi.org/10.1163/22119000-12340064","url":null,"abstract":"Querying Poulsen’s view that some States negotiate investment treaties in ‘bounded’ rational ways, this article focuses on how the recently concluded European Union-Singapore Free Trade Agreement (EUSFTA) illustrates the evolution of Singapore’s treaty practice. Singapore has abandoned the ‘old’, and has joined the bandwagon of next-generation FTAs; yet, shrewdly, it is not fully convinced about the ‘new’ either. For example, the EUSFTA does not include a most-favoured nation clause, and does not commit to an appeals mechanism, unlike its Canadian and Vietnamese counterparts. Singapore’s caution appears to be motivated by a pragmatic desire to avoid the pitfalls that these provisions could bring with them, as Investor-State arbitration (ISA) jurisprudence demonstrates, and to study the implications of a recent decision by the EU’s highest court regarding the FTA. Indeed, that shows that the EU itself is now equally wary of the ISA regime removing disputes from the jurisdiction of national courts.","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-12-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122290042","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
International Investment Arbitration in Thailand: Limiting Contract-Based Claims While Maintaining Treaty-Based ISDS 泰国的国际投资仲裁:限制基于合同的索赔同时维持基于条约的ISDS
The journal of world investment and trade Pub Date : 2017-12-06 DOI: 10.1163/22119000-12340062
L. Nottage, Sakda Thanitcul
{"title":"International Investment Arbitration in Thailand: Limiting Contract-Based Claims While Maintaining Treaty-Based ISDS","authors":"L. Nottage, Sakda Thanitcul","doi":"10.1163/22119000-12340062","DOIUrl":"https://doi.org/10.1163/22119000-12340062","url":null,"abstract":"Thailand was initially cautious with its bilateral investment treaties (BITs), consistently eschewing investor-state dispute settlement (ISDS). From 1989 it began agreeing to ISDS, but only if both states were party to the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, which Thailand signed in 1965 but never ratified. From 1993, BITs increasingly provided for ad hoc arbitration. Major disputes emerged from the 1990s instead under contracts with foreign investors containing arbitration clauses. From 2004 concession contracts required Cabinet pre-approval. This limitation was extended to all public contracts from 2009, after the first treaty-based ISDS award against Thailand, although two further claims have been filed recently. A 2002 Model bit was revised in 2013 to incorporate more pro-host-state provisions, but Thailand had net foreign direct investment (FDI) outflows in 2011 and still concludes treaties with ISDS. These patterns suggest ‘more than bounded’ rationality.","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"57 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-12-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126684188","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 2
Special Issue: International Investment Arbitration in Southeast Asia: An Introduction 特刊:东南亚国际投资仲裁:导论
The journal of world investment and trade Pub Date : 2017-12-06 DOI: 10.1163/22119000-12340061
L. Nottage, Sakda Thanitcul
{"title":"Special Issue: International Investment Arbitration in Southeast Asia: An Introduction","authors":"L. Nottage, Sakda Thanitcul","doi":"10.1163/22119000-12340061","DOIUrl":"https://doi.org/10.1163/22119000-12340061","url":null,"abstract":"The dynamic economies of the Association of Southeast Asian Nations (ASEAN) have individually concluded many standalone bilateral investment treaties (BITs) and a growing number of bilateral and regional free trade agreements (FTAs), supplemented by intra-ASEAN and ‘ASEAN+’ agreements. These aim to facilitate and protect burgeoning foreign direct investment (FDI) flows, outlined in Part 2, including large outflows recently from several states. Part 3 outlines treaty-making trends, including considerable consistency from many member states as well as some interesting innovations, against the backdrop of persistent problems of poor governance. Part 4 highlights nonetheless the relative paucity of investor-state dispute settlement (ISDS) claims against ASEAN member states, with only a few adverse awards, which helps explain why treaty-based ISDS has not been abandoned. Part 5 also notes several contributions from this ISDS case law to international investment law, and Southeast Asia’s potential to keep influencing its trajectory.","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-12-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121448506","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
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